Winkel v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 01/10/2022. (ses)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY LEE W.,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Disability Insurance Benefits (DIB) pursuant to sections 216(i) and 223 of the
Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no
reversible error in the Administrative Law Judge’s (ALJ) step two evaluation or
evaluation of the opinions of the workers compensation physicians, the court ORDERS
that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)
AFFIRMING the Commissioner’s final decision.
The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of Social Security disability claimants, it has
determined to caption such opinions using only the initial of the Plaintiff’s last name.
On July 9, 2021, Kilolo Kijakazi was sworn in as Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Kijakazi is substituted for Commissioner Andrew M. Saul as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
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Plaintiff protectively filed an application for DIB on May 2, 2019. (R. 12, 199).
After exhausting administrative remedies before the Social Security Administration
(SSA), Plaintiff filed this case seeking judicial review of the Commissioner’s decision
pursuant to 42 U.S.C. § 405(g). Plaintiff claims the ALJ erred in failing to consider all
his medically determinable impairments and the opinions of two physicians who treated
him for his workers compensation injury, Dr. O’Brien-Leighton and Dr. Ericksen.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). “Substantial evidence” refers to
the weight, not the amount, of the evidence. It requires more than a scintilla, but less
than a preponderance; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
Consequently, to overturn an agency’s finding of fact the court “must find that the
evidence not only supports [a contrary] conclusion, but compels it.” I.N.S. v. EliasZacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
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The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
the determination whether substantial evidence supports the Commissioner’s decision is
not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
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assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the process—determining
at step four whether, considering the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, he is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the
burden is on Plaintiff to prove a disability that prevents performance of past relevant
work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter,
245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs in the economy which are
within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). The court addresses each error alleged in Plaintiff’s Social Security Brief.
Step Two Evaluation
Plaintiff points out the only severe impairments found by the ALJ in this case are
impairments of the lumbar spine and argues that he “was also limited as a result of
cervical spine abnormalities, degeneration in his left shoulder joint, Scheuermann’s
kyphosis, a right ACL tear, a right meniscus tear, mild subchondral hip sclerosis, and a
right ankle impairment” which were not accounted for—and in most cases not even
considered—by the ALJ. (Pl. Br. 14). He argues his shoulder and cervical spine
impairments limited his ability to reach, as was opined by Dr. Dobyns, Dr. O’BrienLeighton, and Dr. Wesley. Id. at 14-18. He argues “Scheuermann’s kyphosis can also
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affect reaching,” id. at 17, and “helps explain the source and degree of” his pain, tight
muscles, and knot or swelling near his spine. (Pl. Br. 18-20). Finally, he argues his right
knee, hip, and ankle impairments limit his ability to stand and walk. Id. at 20-24. In each
instance, Plaintiff suggests the ALJ should have assessed RFC limitations similar to those
opined by Dr. Wesley, whose opinion the ALJ found is not persuasive. Id. 17, 20, 24; see
also (R 18).
The Commissioner argues the ALJ’s decision is supported by the record evidence
and any failure to consider adequately the “smattering of impairments and limitations” to
which Plaintiff appeals is not harmful error. (Comm’r Br. 12). She argues it is not error
for an ALJ to fail to state all of a claimant’s severe impairments “so long as the ALJ finds
at least one other severe impairment.” Id. at 13 (citing Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016); Smith v. Colvin, 821 F.3d 1264, 1266-67 (10th Cir. 2016)). She
argues, contrary to Plaintiff’s assertion otherwise, that the ALJ stated he had “considered
and reviewed the entire record, all evidence, and all symptoms, and the Court [sic] should
take him at his word.” Id. (citation omitted). She argues
By adopting the State [sic] agency doctors’ prior administrative medical
findings that were based on a comprehensive review of evidence from the
relevant period, the ALJ adequately considered and accounted for
limitations reasonably stemming from all of Plaintiff’s conditions on this
record. This is so, even if the ALJ did not expressly designate some of
Plaintiff’s issues as medically determinable.
Id. a 13-14 (citing Ray v. Colvin, 657 F. App’x 733, 734 (10th Cir. 2016)).
The Commissioner argues that in suggesting greater RFC limitations Plaintiff is
merely asking the court to reweigh the evidence or second guess the ALJ. She concludes
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that the record does not support limitations greater than those assessed by the ALJ in any
case. (Comm’r Br. 14-17).
In his Reply Brief, Plaintiff reiterates his earlier arguments and argues that the
Commissioner’s counter arguments are post hoc rationalizations for the ALJ’s decision
which do not excuse the ALJ’s failure to discuss all Plaintiff’s medically determinable
Step Two Standard
An impairment is not considered severe if it does not significantly limit plaintiff’s
ability to do basic work activities such as walking, standing, sitting, carrying,
understanding simple instructions, responding appropriately to usual work situations, and
dealing with changes in a routine work setting. 20 C.F.R. § 404.1522. The Tenth Circuit
has interpreted the regulations and determined that to establish a “severe” impairment or
combination of impairments at step two of the sequential evaluation process, Plaintiff
must make only a “de minimis” showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th
Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal
effect on his ability to do basic work activities. Williams, 844 F.2d at 751. However, he
must show more than the mere presence of a condition or ailment. Hinkle, 132 F.3d at
1352 (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)). If an impairment’s medical
severity is so slight that it could not interfere with or have a serious impact on plaintiff’s
ability to do basic work activities, it could not prevent plaintiff from engaging in
substantial work activity and will not be considered severe. Hinkle, 132 F.3d at 1352.
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In Brescia v. Astrue, 287 F. App’x 626, 628-629 (10th Cir. 2008), the claimant
argued that the ALJ improperly determined that several of her impairments did not
qualify as severe impairments. The court held that once an ALJ has found that plaintiff
has at least one severe impairment, a failure to designate another as “severe” at step two
does not constitute reversible error because, under the regulations, the agency at later
steps considers the combined effect of all of the claimant=s impairments without regard to
whether any such impairment, if considered separately, would be of sufficient severity.
Later, in Hill v. Astrue, 289 F. App’x. 289, 291-92, (10th Cir. 2008), the court held that
the failure to find that additional impairments are also severe is not in itself cause for
reversal so long as the ALJ, in determining the claimant’s RFC, considers the effects “of
all of the claimant’s medically determinable impairments, both those he deems ‘severe’
and those ‘not severe.’”
Moreover, while limitations attributed to impairments which are medically
determinable but are not severe must be considered at later steps in the evaluation,
alleged limitations attributable to impairments which are not medically determinable
must not be considered at later steps. 20 C.F.R. § 404.1523; see also, Rutherford v.
Barnhart, 399 F.3d 546, 554, n.7 (3d Cir. 2005) (to be considered, an impairment must be
medically determinable, but need not be “severe”); Gibbons v. Barnhart, 85 F. App’x 88,
91 (10th Cir. 2003) (“the ALJ must consider only limitations and restrictions attributable
to medically determinable impairments.”) (quotation omitted); 20 C.F.R. § 404.1529(b)
(explaining that symptoms may only be considered when they reasonably result from a
medically determinable impairment).
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As Plaintiff points out, the regulations provide that “impairment(s) must result
from anatomical, physiological, or psychological abnormalities that can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R.
§ 404.1521 (quoted at Pl. Br. 16). However, the next two sentences of the regulation
explain, “a physical or mental impairment must be established by objective medical
evidence from an acceptable medical source. We will not use your statement of
symptoms, a diagnosis, or a medical opinion to establish the existence of an
impairment(s).” 20 C.F.R. § 404.1521. Thus, to the extent Plaintiff relies on his
symptoms, the diagnoses of various physicians, or the opinions of physicians to
demonstrate that conditions not discussed by the ALJ are medically determinable
impairments (hereinafter MDI), his arguments fail. Moreover, Plaintiff’s arguments miss
the point that pain is a symptom, not an impairment, so his allegations of back pain, neck
pain, shoulder pain, hip pain, knee pain, and ankle pain are symptoms, and while they
may suggest a related impairment, by themselves they do not demonstrate the presence of
a medically determinable impairment or impairments.
The court agrees with Plaintiff that there is objective medical evidence (“medical
signs, laboratory findings, or both.” 20 C.F.R. § 404.1513(a)(1)) tending to suggest that
Plaintiff has additional MDIs affecting his musculoskeletal system in his cervical and
thoracic spine; his left shoulder; and his right hip, knee, and ankle. However, as noted in
the step two standard above, the mere presence of a condition does not establish
limitations. Nevertheless, it is by no means clear that the ALJ determined the limitations,
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if any, resulting from these MDIs and considered them in assessing Plaintiff’s RFC or
determined such limitations were subsumed within the RFC he assessed. The
Commissioner argues that any error was harmless because the ALJ found other
impairments that are severe. (Comm’r Br. 13) (citing Allman, 813 F.3d at 1330; Smith,
821 F.3d at 1266-67). The Commissioner does not acknowledge that the regulations
require the ALJ to consider any additional limitations resulting from the additional MDI.
Further, in the cases relied upon by the Commissioner, there was no question regarding
an MDI, for each court recognized that the ALJ had considered the impairments at issue.
Allman, 813 F.3d at 1330 (“Mr. Allman concedes that the ALJ considered his
headaches”); Smith, 821 F.3d at 1267 (“Though the administrative law judge did not
mention a left shoulder impingement at step two, he apparently found impairments in
both shoulders when assessing the residual functional capacity. There, for example, the
judge found a reduced range of motion in Ms. Smith’s shoulder joints and limited her
ability to lift and carry objects. Ms. Smith does not say what else a left shoulder
impingement would have prevented her from doing.”)
Here, Plaintiff has clearly alleged MDI’s which were not discussed and arguably
not considered by the ALJ when assessing RFC. Because the court cannot find this was
not error, the remaining question for the court is whether any error was harmless. The
court finds it was. The mere presence of error in the disability determination process
does not require remand. As noted above, it is a claimant’s responsibility to show that he
is unable to perform any substantial gainful activity, and as relevant here he has the
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burden to show that he has limitations greater than those in the RFC assessed. He has not
met that burden as to this issue.
The problem with Plaintiff’s argument is he does not point to record evidence
which compels finding greater limitations than those assessed by the ALJ. Plaintiff
argues his shoulder and cervical spine problems “warranted limitations in” his ability to
reach (Pl. Br. 17) and suggests he should have been limited to no more than frequent
overhead reaching as opined by Dr. Wesley. Id. at 18. Plaintiff argues his
Scheuermann’s kyphosis provides an explanation for his allegations of pain—and
supports his alleged need to recline and Dr. Wesley’s opinion suggesting greater RFC
limitations. Id. at 18-20. Finally, he argues his right hip, knee, and ankle impairments
require standing and walking limitations similar to those Dr. Wesley opined—standing
and walking less than two hours in a day, alternate sitting and standing/walking at will,
and the opportunity to lie down at unpredictable intervals. Id. at 24.
No evidence cited by Plaintiff compels greater limitations than assessed by the
ALJ. Plaintiff primarily appeals to medical opinions to support his suggestion of greater
limitations. As will be addressed more fully hereinafter, the opinions of Dr. O’BrienLeighton and Dr. Erickson do not apply here. Moreover, the ALJ found Dr. Wesley’s
opinion unpersuasive because it is inconsistent with the evidence and because it was
propounded by Dr. Wesley after Plaintiff’s date last insured. Although Plaintiff primarily
relies on Dr. Wesley’s opinion to support his suggestion of greater limitations, he does
not directly challenge the ALJ’s persuasiveness finding and the court finds that it is
supported by the record evidence.
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Plaintiff points to objective medical evidence demonstrating such conditions as
disc herniation and bulging, hypertrophic and degenerative changes, limited abduction
(Pl. Br. 15), Scheuermann’s kyphosis with anterior wedging of the T11, T12, and L1
vertebrae, id. at 19, ACL tear, meniscus tear, effusion, mild subchondral sclerosis of the
hip, trochanteric tenderness, antalgic gait, tenderness and cavovarus foot deformity, and
osteochondral defect of the medial talar dome. Id. at 21-22. None of the objective
medical evidence cited states a functional limitation or the degree of such limitation, and
Plaintiff points to no evidence beyond his testimony and the unpersuasive or inapplicable
medical opinions to which he appeals to suggest greater limitations. Further, he does not
even state the specific functional limitations he believes the record supports. Rather, he
argues the ALJ should have stated the MDI’s and stated the functional limitations they
imposed or explained why they did not impose greater limitations.
Plaintiff spends considerable effort suggesting functional limitations which can or
might be caused by the conditions referenced in the objective medical evidence cited, but
he points to no record evidence demonstrating specific functional limitations caused by
those conditions in this case. Plaintiff appears to believe that the ALJ should have looked
at the evidence he cites and made a medical determination that the limitations alleged by
Plaintiff were caused by these conditions. Having failed that, he asks the court to weigh
that evidence and determine that the ALJ erred. What Plaintiff’s argument misses is that
his date last insured was December 31, 2018, and the state agency medical consultants,
Dr. Duff, and Dr. Korte, reviewed all objective medical evidence relevant to his condition
before that date and relied upon by Plaintiff and determined Plaintiff had the RFC for a
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wide range of light work. (R. 97-99, 112-14). The ALJ found these prior administrative
medical findings persuasive but found Plaintiff further limited to not climb ladders, ropes,
and scaffolds, and to alternate positions briefly at thirty-minute intervals or less
frequently. Thus, despite Plaintiff’s implying otherwise, the medical evidence has been
reviewed by qualified medical experts who found lesser limitations than did the ALJ.
Plaintiff has not met his burden to show evidence compelling greater limitations than
assessed by the ALJ and the court finds any error in failing to specifically discuss all
potential MDIs is harmless.
Medical Opinions of Dr. O’Brien-Leighton and Dr. Erickson
Plaintiff claims the ALJ erred in failing to explain how persuasive he found the
January 6, 2014 opinion of Dr. O’Brien-Leighton that Plaintiff should limit repetitive
bending/lifting, could not reach overhead and was limited to lifting fifteen pounds, and
the September 16, 2013 opinion of Dr. Erickson that Plaintiff is limited to lifting fifteen
pounds and had bending restrictions. (Pl. Br. 24, 25) (citing R. 332, 488). Arguing from
this court’s earlier decisions, Plaintiff implies the court cannot tell how persuasive the
ALJ found the opinions without weighing the opinions in the first instance. Id. at 26
(citing Stacey L. C. v. Saul, No. CV 20-1064-JWL, 2021 WL 147254, at *4 (D. Kan. Jan.
15, 2021) (“Were the court to find harmless the ALJ’s failure to articulate how persuasive
he found the opinion, it would have to weigh the opinion in the first instance and
determine it is unpersuasive”); Taunya F. v. Saul, No. CV 19-1326-JWL, 2021 WL
38009, at *4 (D. Kan. Jan. 5, 2021) (“[T]he only way to determine what lesser weight
was, or should have been, accorded would be for the court to weigh the opinions in the
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first instance, a task which it is forbidden under the substantial evidence standard of
review.”). The Commissioner argues any error was harmless because the opinions
applied only during the time Plaintiff was being treated for his workers compensation
injury and he was later released to return to work without restrictions. (Comm’r Br. 18).
The court agrees with the Commissioner. Contrary to this court’s opinions cited
above, the decision at issue here makes it clear how the ALJ considered these opinions.
Although the ALJ did not mention either physician by name, he did explain his
consideration of their opinions.
[Plaintiff] was treated for a lumbar strain at work in August 2013 and was
returned to work with a 15-pound restriction with no overhead reaching or
repetitive bending/lifting (exhibit 1F/1 [, R. 316]). An October 2013
lumbar spine MRI showed evidence of disc degenerative changes at L1-2,
L2-3, and L3-4, worse at L3-4, as well as anterior spurring and possible
mild neural foraminal narrowing at L3-4. The record shows the claimant
continued to work with these restrictions, while attending regular follow-up
(exhibit 1F/13, 18 [, R. 328, 333]). The evidence of record shows the
claimant was treated conservatively until September 11, 2014, when he was
released to return to work without any limitations (exhibit 2F/2 [, R. 335)).
(R. 17). The ALJ’s explanation makes it clear that the opinions at issue, made during the
progress of treatment for Plaintiff’s work injury, ended by their terms when Plaintiff was
released to return to work without restrictions. Had the ALJ stated how persuasive he
found those opinions, it would have confused the real issues in this case. Had he stated
he found the opinions unpersuasive, it might be taken to imply he disagreed with the
treatment of Plaintiff’s work injury, which he clearly did not question. Had he stated he
found the opinions persuasive that might have been used to imply greater limitations after
September 11, 2014 than those the ALJ assessed. The court finds no error in the ALJ’s
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consideration of these two opinions which are really irrelevant to the question of
disability after September 11, 2014 and do not show a twelve months duration after
Plaintiff’s alleged onset of disability on June 26, 2014.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated January 10, 2022, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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